It’s not easy, but apparently it can be done:
Tennessee’s first-in-the-nation law designed to place strict limits on drag shows is unconstitutional, a federal judge says.
The law is both “unconstitutionally vague and substantially overbroad” and encouraged “discriminatory enforcement,” according to the ruling late Friday by U.S. District Judge Thomas Parker, who was appointed by former President Donald Trump.
“There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” Parker said.
“Simply put, no majority of the Supreme Court has held that sexually explicit — but not obscene — speech receives less protection than political, artistic, or scientific speech,” he said.
The law would have banned adult cabaret performances from public property or anywhere minors might be present. Performers who broke the law risked being charged with a misdemeanor or a felony for a repeat offense.
Under current First Amendment doctrine, this is indeed an easy case. But since evading clearly applicable precedents is what the shadow docket is for nowadays, there is no guarantee that the opinion will be allowed to remain the legal baseline.